Wells Fargo Bank, N.A v. Mark Pineda; and Maria Pineda

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed February 13, 2012 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION [Re: Docket Nos. 1, 5, 6]

INTRODUCTION

On January 27, 2012, defendants Mark and Maria Pineda (collectively, "Defendants"), 19 proceeding pro se, removed this case from Santa Clara County Superior Court. Docket No. 1 20 ("Notice of Removal"). Plaintiff Wells Fargo Bank, N.A. ("Wells Fargo") moves to remand and 21 seeks immediate relief by applying ex parte for an order shortening time. Dkt. Nos. 4, 5. Because 22 not all of the parties have consented to the undersigned's jurisdiction, this court is unable to provide 23 the dispositive relief sought. For the reasons stated below, the undersigned DENIES the Motion to 24 Shorten Time, ORDERS that this case be reassigned to a district judge, and RECOMMENDS that 25 this action be summarily remanded to state court. 26

DISCUSSION

Wells Fargo filed this unlawful detainer action against defendants on October 5, 2011 in Santa Clara County Superior Court. Notice of Removal, p. 1. According to the complaint, Wells Fargo acquired the subject property, a Gilroy, CA residence, through a foreclosure trustee's sale on 2 August 19, 2011, in accordance with California Civil Code section 2924. Dkt. No. 1, Exh. A 3 Id. at ¶ 7. Defendants have not vacated the property. Id. at ¶ 8. 5 6 matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on 7 diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 8 ("Complaint") at ¶ 5. On August 22, Wells Fargo served defendants with a three-day Notice to Quit. 4

Removal to federal court is proper where the federal court would have had original subject

U.S. 386, 392 (1987). If, after a court's prompt review of a notice of removal, "it clearly appears on 9 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the 10 court shallmake an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly construed against removal and place the burden on the defendant to demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 13

However, the defendants raised this alleged violation in a demurrer, a responsive pleading, and -- as 27 noted above -- only the complaint can provide the basis for federal question jurisdiction. Discovery 28

Defendants assert that Wells Fargo's unlawful detainer claim fails because it violated the detainer under California law; it does not allege any federal claims whatsoever. See Complaint. 2

Moreover, resolving Wells Fargo's unlawful detainer claim does not depend on resolution of any 3 substantial issues of federal law. Accordingly, the defendants have failed to show that this action 4 arises under federal law. 5

6 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 7 of $75,000. 28 U.S.C. § 1332(a).*fn1 In this matter, all parties are citizens of California, and plaintiff's 8 complaint expressly states that the amount in controversy is less than $10,000. Complaint p. 1. 9

10 question or diversity.

ORDERS the Clerk of the Court to reassign this case to a District Court judge. Wells Fargo's 14 Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction Therefore, there is no basis for this court to exercise jurisdiction based either upon a federal

CONCLUSION

Because not all of the parties have consented to the undersigned's jurisdiction, this court Motion to Shorten Time is DENIED and the hearing on its Motion to Remand is VACATED. The 15 undersigned further RECOMMENDS that the newly assigned judge summarily remand the case to 16

Santa Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party 17 may serve and file objections to this Report and Recommendation within fourteen days after being 18 served.

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 9 10

United States District Court For the Northern District of California

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